WHY VIRGINITY TESTING SHOULD BE DECLARED UNCONSTITUTIONAL IN  SOUTH AFRICA

Virginity testing is a traditional practice mainly carried out in KwaZulu-Natal and the Eastern  Cape, where girls undergo physical examinations to assess their virginity status. Supporters  claim it encourages abstinence, upholds moral values, and lowers the rates of HIV/AIDS and  teenage pregnancies, yet the practice raises serious constitutional concerns. Virginity testing is  fundamentally gender biased, discriminatory, and objectifies young girl children, placing the  entire burden of sexual morality on them while ignoring the sexual conduct of boys. This article  argues that virginity testing infringes upon Sections 9 (equality), 10 (dignity), and 12 (freedom and security of the person of the Constitution of South Africa.1It suggests that the Constitutional  Court should declare virginity testing unconstitutional in its current form and advocates for  reforms that safeguard the health, dignity, and rights of young women while respecting constitutional principles.  

1. INTRODUCTION

Virginity testing is mainly conducted in KwaZulu-Natal and the Eastern Cape, which involves  the invasive inspection of young girls’ genitalia to assess their sexual “purity”. Supporters claim  that it encourages abstinence, ethical conduct, decreases HIV/AIDS transmissions, and prevents  teenage pregnancies. However, behind these claimed objectives exists a practice that is  discriminatory and constitutionally questionable. In some communities if a girl who once  participated in virginity testing later loses her virginity and is discovered, she is subjected to  beating for bringing “shame” upon the group. Worse still, she is often paraded to the home of the  man who “deflowered” her, where her family demands a fine, usually in the form of cattle. This  transforms the girl into a site of violence, humiliation, and transactional value, with her sexuality commodified at the expense of her autonomy and dignity. The Constitutional Court has already  confronted the tension between customary practices and constitutional rights. In Bhe v  Magistrate, Khayelitsha, the Court struck down the customary law rule of male primogeniture in  succession,2finding it inconsistent with sections 9 (equality) and 10 (dignity) of the Constitution.  The Court made it clear that cultural recognition cannot come at the cost of gender equality and  The Court emphasized that acknowledging culture must not undermine gender equality and the  rights of children. If long-established succession traditions had to bow to the Constitution, how  much more should virginity testing, a practice based on gender discrimination, fostering  violence, and lacking scientific credibility, face constitutional examination? This article contends  that virginity testing breaches constitutional and human rights, is ineffective as a public health  strategy, and cannot be defended under the pretext of cultural practices. South Africa’s  lawmakers and judiciary confront the essential challenge of reconciling cultural heritage with  safeguarding children’s rights and promoting gender equality. 

2. legal framework 

Testing for virginity cannot be in line with the core principles of South Africa’s Constitution.  Section 9 (Equality) explicitly states that discrimination based on gender is unconstitutional;  however, virginity testing is enforced solely on girls, exposing them to judgment, stigma, and surveillance, while boys are completely unaffected. This strengthens a harmful double standard:  the girl’s ethics are monitored, whereas boys’ sexual actions are overlooked or justified. Section  10 (Dignity) is also violated, as public tests and the formal presentation of outcomes demean  girls’ intrinsic value, frequently embarrassing them in front of their classmates and the broader  community. For survivors of sexual violence, the experience represents a secondary  victimization: initially by their assailant, and subsequently by a societal framework that  stigmatizes them. Section 12 (Freedom and Security of the Person) safeguards physical and  mental well-being, but virginity testing is fundamentally coercive. Girls who decline are  marginalized, rendering “consent” to the practice a legal illusion. Section 14 (Privacy) is  breached as an individual’s sexual history is profoundly personal, not something for communal scrutiny. Revealing one’s virginity status can jeopardize lives, especially in regions where  misconceptions, like the idea that having intercourse with a virgin cures HIV/AIDS, remain.  Ultimately, Section 28 (Children’s Rights) stipulates that all issues related to children must focus  on their best interests.3 Virginity testing does the contrary: it subjects girls to trauma, humiliation,  and occasionally even physical danger. These exact harms are what the Children’s Bill aims to  avert, demonstrating that virginity testing conflicts with the constitutional guarantees of dignity,  equality, and freedom.4 

2.2 Statutory Framework  

The legal structure clearly indicates that virginity testing is inappropriate in a democratic South  Africa. The Children’s Bill (B70–B2003) clearly bans virginity testing for minors under 18 and  makes the practice illegal (Clause 12(6)(a); Clause 305(6)), a specific legislative action to  safeguard young people from damaging cultural traditions that violate their dignity, equality, and  bodily integrity.5 The Bill embodies the constitutional principle that, although cultural rights are  acknowledged, they must not be exercised in manners that jeopardize children or diminish their  humanity. In addition, the Promotion of Equality and Prevention of Unfair Discrimination Act 4  of 2000 (PEPUDA) forbids unfair discrimination and clearly bans traditional or customary  practices that undermine women’s dignity or sustain inequality. Virginity testing directly aligns  with this prohibition: it exclusively focuses on girl-children, monitors their sexuality, and reinforces a damaging double standard by completely excluding boys from any examination. The  Children’s Bill and PEPUDA together illustrate that South Africa’s legislative stance is clear that  cultural practices must give way when they conflict with constitutional principles of equality,  dignity, and freedom. 6 

2.3 Judicial Interpretation  

The Constitutional Court has emphasized that culture and religion, although protected, do not serve  as unconditional barriers to the enforcement of fundamental rights. In Prince v President of the  Law Society of the Cape of Good Hope the Court determined that cultural and religious practices  should exist alongside other constitutional rights and cannot be used to rationalize harm or  discrimination. Virginity testing, by violating the dignity, privacy, and equality of girls, clearly  belongs to the group of practices that fail to withstand constitutional examination. In Christian  Education South Africa v Minister of Education, the Court confirmed that religious and cultural  groups are not entitled to exemptions from laws designed to protect the rights of vulnerable  populations.7 Using this logic, virginity testing cannot be justified by referencing custom or  tradition as it has harmful and demeaning effects on girls, significantly overshadowing any cultural  rationale. These precedents emphasize that the protection of culture must give way when it clashes  with the fundamental rights to equality, dignity, and bodily integrity 

3. Constitutional Concerns 

Virginity testing is constitutionally indefensible because it simultaneously entrenches gender  discrimination, violates dignity, fails as a public health strategy, and cannot withstand a Section 36  limitations analysis. By policing only female sexuality, the practice enforces patriarchal norms that  burden girls with the responsibility of preventing HIV/AIDS and teenage pregnancies, while  absolving boys of any accountability, an unequal and sexist double standard that directly  undermines Section 9 of the Constitution. Worse still, for girls who have survived sexual violence,  the process of genital examinations and public ceremonies constitute secondary trauma, stripping  away dignity under Section 10 and exposing them to stigma and psychological harm. Beyond the  human rights violations, virginity testing is ineffective in achieving its stated goals: no credible  evidence shows that it reduces HIV/AIDS rates or prevents teenage pregnancies, while proven  alternatives such as comprehensive sex education, gender equality initiatives, and empowerment  programs exist and align with constitutional values. Under Section 36, cultural rights may be  limited only where justifiable, but virginity testing cannot meet this threshold. It perpetuates  inequality, harms children, and fails to achieve its objectives. To shield the practice under the  banner of “culture” is therefore not only irrational but unconstitutional. 

4. Recent Developments 

The debate over virginity testing has emerged again due to King Zwelithini’s vocal resistance to  the legal ban, asserting that cultural traditions should be maintained even in the face of legal  changes. This position emphasizes the ongoing conflict between tradition and constitutional rights  in a constitutional democracy. Proponents of virginity testing reference Section 31 of the  Constitution, safeguarding cultural, religious, and linguistic groups; conversely, critics stress that  these rights are explicitly restricted when they violate equality, dignity, or the rights of children.  The government has sought to control the practice via the Children’s Act, banning virginity  assessments for those under 16 and mandating consent and privacy protections for individuals aged  16–18. However, the ongoing public rituals, penalties on families of girls who “lose” their  virginity, and the societal stigma associated with non-virgins highlight a disconnect between  legislation and actual experiences. Public response is intensely polarized: cultural traditionalists  charge the government with eroding African identity, whereas human rights proponents, such as  the Commission for Gender Equality, denounce the practice as systemic sexism and secondary  victimization. 

5. Recommendations 

Virginity testing ought to be deemed unconstitutional in South Africa as it reinforces gender  disparity, infringes on dignity, and does not hold up as a valid cultural tradition. The Constitutional  Court must specifically invalidate it, just as it did with male primogeniture in Bhe v Magistrate,  Khayelitsha, confirming that no tradition can supersede basic rights. Cultural preservation must  avoid entrenching harmful practices and instead transform them. Communities can maintain  symbolic observances of ethics, resilience, and youth success without intrusive evaluations.  Equally vital, thorough sex education should focus on both boys and girls, breaking down the  patriarchal notion that only girls are responsible for preventing HIV/AIDS or teenage pregnancies.  Parliament needs to enhance the enforcement of the Children’s Act and PEPUDA by making it a  crime for guardians or leaders to impose virginity testing on minors, while independent bodies  such as the Commission for Gender Equality must oversee, take legal action, and ensure violators  face consequences. Even in adults, what is termed “voluntary” testing must be examined for true  consent, since pressure from families and communities makes autonomy a mere illusion. In the  end, different cultural practices, mentorship initiatives, educational rituals of transition, and festivals honoring youth empowerment can maintain heritage without undermining constitutional  principles. By transforming culture within constitutional limits, South Africa can respect its  traditions while protecting equality, dignity, and the welfare of its children. 

6. Conclusion 

Virginity testing is not just a cultural custom; it represents a constitutional issue. Controlling the  bodies of young girls while allowing boys, sexual behavior reinforces sexism, diminishes dignity,  and subjects children to humiliation, trauma, and potential violence. Advocates wrap it in terms of  culture, ethics, and HIV prevention, yet the truth is that it sustains patriarchy and fails as a public  health instrument. The Constitution requires additional measures Section 9 guarantees equality,  Section 10 defends dignity, and Section 28 ensures the welfare of children. These rights cannot be  put on hold at the threshold of tradition. As established by the Court in Bhe v Magistrate,  Khayelitsha and reiterated in Prince v President of the Law Society of the Cape of Good Hope, the  acknowledgment of culture stops at the point of human rights infringements. South Africa, a  country formed from the denial of oppression, must not permit its women to be treated as items of  scrutiny or bargaining chips in lobola discussions. Maintaining virginity testing as it is now to  dishonor the fundamental constitutional principles that characterize our democracy. The moment  has arrived for the Constitutional Court to make a definitive statement: virginity testing is  unconstitutional, indefensible, and must be eliminated. 

7. Bibliography 

Primary Sources 

1. Constitution of the Republic of South Africa, 1996. 
2. Children’s Act 38 of 2005. 
3. Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Case Law 
4. Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC). 
5. Prince v President of the Law Society of the Cape of Good Hope 2002 (3) BCLR 231 (CC).
6. Christian Educ. S. Afr. v Minister of Educ. 2000 (4) SA 757 (CC). 

Secondary Sources 

7. Commission for Gender Equality, Report on Cultural Practices and Human Rights (2018). 8. Mail & Guardian, Virginity Testing Debate Divides KZN (Aug. 2016). 
8. Budlender, G. Marcus & N. Ferreira, Constitutional Law of South Africa (2d ed. 2019). 
9. C. Albertyn, “Substantive Equality and Transformation in South Africa” (2010) 26 SAJHR  253.

1 Constitution of the Republic of South Africa 9,10 &12

2 Bhe v Magistrate, Khayelitsha, 2005 (1) SA 580 (CC).

3 Constitution of the Republic of South Africa s 28 

4 Children’s Act 38 of 2005, § 12(4)–(6). 

5 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 6. 

6 Commission for Gender Equality, Report on Cultural Practices and Human Rights (2018).

7 Christian Educ. S. Afr. v Minister of Educ., 2000 (4) SA 757 (CC).